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[G.R. No. 157537. September 7, 2011.

CONSOLACION, LEONORA and ASUNCION, all surnamed GO, represented by
LEONORA B. GO, petitioners, vs. ESTER L. SERVACIO and RITO B. GO,respondents.

The disposition by sale of a portion of the conjugal property by the surviving spouse without the prior
liquidation mandated by Article 130 of the Family Code is not necessarily void if said portion has not yet been allocated
by judicial or extrajudicial partition to another heir of the deceased spouse. At any rate, the requirement of prior
liquidation does not prejudice vested rights.
On February 22, 1976, Jesus B. Gaviola sold two parcels of land with a total area of 17,140 square meters
situated in Southern Leyte to Protacio B. Go, Jr. (Protacio, Jr.). Twenty three years later, or on March 29, 1999,
Protacio, Jr. executed an Affidavit of Renunciation and Waiver, 1 whereby he affirmed under oath that it was his father,
Protacio Go, Sr. (Protacio, Sr.), not he, who had purchased the two parcels of land (the property).
On November 25, 1987, Marta Barola Go died. She was the wife of Protacio, Sr. and mother of the
petitioners. 2 On December 28, 1999, Protacio, Sr. and his son Rito B. Go (joined by Rito's wife Dina B. Go) sold a
portion of the property with an area of 5,560 square meters to Ester L. Servacio (Servacio) for P5,686,768.00. 3On
March 2, 2001, the petitioners demanded the return of the property, 4 but Servacio refused to heed their demand.
After barangay proceedings failed to resolve the dispute, 5 they sued Servacio and Rito in the Regional Trial Court
in Maasin City, Southern Leyte (RTC) for the annulment of the sale of the property.
The petitioners averred that following Protacio, Jr.'s renunciation, the property became conjugal property;
and that the sale of the property to Servacio without the prior liquidation of the community property between
Protacio, Sr. and Marta was null and void. 6
Servacio and Rito countered that Protacio, Sr. had exclusively owned the property because he had purchased
it with his own money. 7 TaCDcE
On October 3, 2002, 8 the RTC declared that the property was the conjugal property of Protacio, Sr. and
Marta, not the exclusive property of Protacio, Sr., because there were three vendors in the sale to Servacio (namely:
Protacio, Sr., Rito, and Dina); that the participation of Rito and Dina as vendors had been by virtue of their being
heirs of the late Marta; that under Article 160 of the Civil Code, the law in effect when the property was acquired, all
property acquired by either spouse during the marriage was conjugal unless there was proof that the property thus
acquired pertained exclusively to the husband or to the wife; and that Protacio, Jr.'s renunciation was grossly
insufficient to rebut the legal presumption. 9
Nonetheless, the RTC affirmed the validity of the sale of the property, holding that: ". . . As long as the
portion sold, alienated or encumbered will not be allotted to the other heirs in the final partition of the property, or
to state it plainly, as long as the portion sold does not encroach upon the legitimate (sic) of other heirs, it is
valid." 10 Quoting Tolentino's commentary on the matter as authority, 11 the RTC opined:
In his comment on Article 175 of the New Civil Code regarding the dissolution of the
conjugal partnership, Senator Arturo Tolentino, says" [sic]
"Alienation by the survivor. — After the death of one of the spouses, in case it is necessary
to sell any portion of the community property in order to pay outstanding obligation of the
partnership, such sale must be made in the manner and with the formalities established by
the Rules of Court for the sale of the property of the deceased persons. Any sale, transfer,
alienation or disposition of said property affected without said formalities shall be null and
void, except as regards the portion that belongs to the vendor as determined in the
liquidation and partition. Pending the liquidation, the disposition must be considered as
limited only to the contingent share or interest of the vendor in the particular property
involved, but not to the corpus of the property.
This rule applies not only to sale but also to mortgages. The alienation, mortgage or disposal
of the conjugal property without the required formality, is not however, null ab initio, for the
law recognizes their validity so long as they do not exceed the portion which, after

liquidation and partition, should pertain to the surviving spouse who made the
contract." [Underlining supplied]
It seems clear from these comments of Senator Arturo Tolentino on the provisions of
the New Civil Code and the Family Code on the alienation by the surviving spouse of the
community property that jurisprudence remains the same — that the alienation made by the
surviving spouse of a portion of the community property is not wholly void ab initio despite Article
103 of the Family Code, and shall be valid to the extent of what will be allotted, in the final partition,
to the vendor. And rightly so, because why invalidate the sale by the surviving spouse of a portion
of the community property that will eventually be his/her share in the final partition? Practically
there is no reason for that view and it would be absurd. EHaCTA
Now here, in the instant case, the 5,560 square meter portion of the 17,140 square-meter
conjugal lot is certainly mush (sic) less than what vendors Protacio Go and his son Rito B. Go will
eventually get as their share in the final partition of the property. So the sale is still valid.
WHEREFORE, premises considered, complaint is hereby DISMISSED without
pronouncement as to cost and damages.
The RTC's denial of their motion for reconsideration 13 prompted the petitioners to appeal directly to the
Court on a pure question of law.
The petitioners claim that Article 130 of the Family Code is the applicable law; and that the sale by Protacio,
Sr., et al. to Servacio was void for being made without prior liquidation.
In contrast, although they have filed separate comments, Servacio and Rito both argue that Article 130 of
the Family Code was inapplicable; that the want of the liquidation prior to the sale did not render the sale invalid,
because the sale was valid to the extent of the portion that was finally allotted to the vendors as his share; and that
the sale did not also prejudice any rights of the petitioners as heirs, considering that what the sale disposed of was
within the aliquot portion of the property that the vendors were entitled to as heirs. 14
The appeal lacks merit.
Article 130 of the Family Code reads:
Article 130. Upon the termination of the marriage by death, the conjugal partnership
property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the
conjugal partnership property either judicially or extra-judicially within one year from the death of
the deceased spouse. If upon the lapse of the six month period no liquidation is made, any
disposition or encumbrance involving the conjugal partnership property of the terminated marriage
shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with the
foregoing requirements, a mandatory regime of complete separation of property shall govern the
property relations of the subsequent marriage.
Article 130 is to be read in consonance with Article 105 of the Family Code, viz.:
Article 105. In case the future spouses agree in the marriage settlements that the regime
of conjugal partnership of gains shall govern their property relations during marriage, the provisions
in this Chapter shall be of supplementary application.
The provisions of this Chapter shall also apply to conjugal partnerships of gains
already established between spouses before the effectivity of this Code, without
prejudice to vested rights already acquired in accordance with the Civil Code or other
laws, as provided in Article 256. (n) [emphasis supplied]DCcHIS
It is clear that conjugal partnership of gains established before and after the effectivity of the Family Code are
governed by the rules found in Chapter 4 (Conjugal Partnership of Gains) of Title IV (Property Relations Between

Husband and Wife) of the Family Code. Hence, any disposition of the conjugal property after the dissolution of the
conjugal partnership must be made only after the liquidation; otherwise, the disposition is void.
Before applying such rules, however, the conjugal partnership of gains must be subsisting at the time of the
effectivity of the Family Code. There being no dispute that Protacio, Sr. and Marta were married prior to the effectivity
of the Family Code on August 3, 1988, their property relation was properly characterized as one of conjugal
partnership governed by the Civil Code. Upon Marta's death in 1987, the conjugal partnership was dissolved, pursuant
to Article 175 (1) of the Civil Code, 15 and an implied ordinary co-ownership ensued among Protacio, Sr. and the
other heirs of Marta with respect to her share in the assets of the conjugal partnership pending a liquidation following
its liquidation. 16 The ensuing implied ordinary co-ownership was governed by Article 493 of the Civil Code, 17 to
Article 493.Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are involved. But the effect of the
alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of the co-ownership. (399)
Protacio, Sr., although becoming a co-owner with his children in respect of Marta's share in the conjugal
partnership, could not yet assert or claim title to any specific portion of Marta's share without an actual partition of
the property being first done either by agreement or by judicial decree. Until then, all that he had was an ideal or
abstract quota in Marta's share. 18 Nonetheless, a co-owner could sell his undivided share; hence, Protacio, Sr. had
the right to freely sell and dispose of his undivided interest, but not the interest of his co-owners. 19 Consequently,
the sale by Protacio, Sr. and Rito as co-owners without the consent of the other co-owners was not necessarily void,
for the rights of the selling co-owners were thereby effectively transferred, making the buyer (Servacio) a co-owner
of Marta's share.20 This result conforms to the well-established principle that the binding force of a contract must
be recognized as far as it is legally possible to do so (quando res non valet ut ago, valeat quantum valere potest). 21
Article 105 of the Family Code, supra, expressly provides that the applicability of the rules on dissolution of
the conjugal partnership is "without prejudice to vested rights already acquired in accordance with the Civil Code or
other laws." This provision gives another reason not to declare the sale as entirely void. Indeed, such a declaration
prejudices the rights of Servacio who had already acquired the shares of Protacio, Sr. and Rito in the property subject
of the sale. cEAHSC
In their separate comments, 22 the respondents aver that each of the heirs had already received "a certain
allotted portion" at the time of the sale, and that Protacio, Sr. and Rito sold only the portions adjudicated to and
owned by them. However, they did not present any public document on the allocation among her heirs, including
themselves, of specific shares in Marta's estate. Neither did they aver that the conjugal properties has already been
liquidated and partitioned. Accordingly, pending a partition among the heirs of Marta, the efficacy of the sale, and
whether the extent of the property sold adversely affected the interests of the petitioners might not yet be properly
decided with finality. The appropriate recourse to bring that about is to commence an action for judicial partition, as
instructed in Bailon-Casilao v. Court of Appeals, 23 to wit:
From the foregoing, it may be deduced that since a co-owner is entitled to sell his
undivided share, a sale of the entire property by one co-owner without the consent of
the other co-owners is not null and void. However, only the rights of the co-owner-seller are
transferred, thereby making the buyer a co-owner of the property.
The proper action in cases like this is not for the nullification of the sale or for the recovery
of possession of the thing owned in common from the third person who substituted the co-owner
or co-owners who alienated their shares, but the DIVISION of the common property as if it
continued to remain in the possession of the co-owners who possessed and administered it [Mainit
v. Bandoy, supra].
Thus, it is now settled that the appropriate recourse of co-owners in cases
where their consent were not secured in a sale of the entire property as well as in a
sale merely of the undivided shares of some of the co-owners is an action for
PARTITION under Rule 69 of the Revised Rules of Court. . . . 24
In the meanwhile, Servacio would be a trustee for the benefit of the co-heirs of her vendors in respect of
any portion that might not be validly sold to her. The following observations of Justice Paras are explanatory of this
result, viz.:
. . . [I]f it turns out that the property alienated or mortgaged really would pertain to the
share of the surviving spouse, then said transaction is valid. If it turns out that there really would

be, after liquidation, no more conjugal assets then the whole transaction is null and void. But if it
turns out that half of the property thus alienated or mortgaged belongs to the husband as his share
in the conjugal partnership, and half should go to the estate of the wife, then that corresponding to
the husband is valid, and that corresponding to the other is not. Since all these can be determined
only at the time the liquidation is over, it follows logically that a disposal made by the surviving
spouse is not void ab initio. Thus, it has been held that the sale of conjugal properties cannot be
made by the surviving spouse without the legal requirements. The sale is void as to the share of
the deceased spouse (except of course as to that portion of the husband's share inherited by her
as the surviving spouse). The buyers of the property that could not be validly sold become trustees
of said portion for the benefit of the husband's other heirs, the cestui que trust ent. Said heirs shall
not be barred by prescription or by laches (See Cuison, et al. v. Fernandez, et al., L-11764, Jan. 31,
1959.) 25
WHEREFORE, we DENY the petition for review on certiorari; and AFFIRM the decision of the Regional
Trial Court.
The petitioners shall pay the costs of suit. EcASIC
||| (Heirs of Spouses Go, Sr. v. Servacio, G.R. No. 157537, [September 7, 2011], 672 PHIL 447-460)